ENFORCEMENT: THE DIFFERENCE

BETWEEN THE LAWS OF WAR AND THE

GENEVA CONVENTIONS
Richard L. Fruchterman,Jr.*

After hearing two outstanding presentations and a beautiful

comment from members of this panel, two possibilities occurred to
me. The first was that I could limit my remarks to the prior discus-
sion of Lieber's Code. Professor Haimbaugh, Colonel Draper, and
Mr. Solf have all done an excellent job discussing this subject, but
I must admire their courage in coming here to Georgia and speak-
ing so highly of a man whose works have been used to justify Sher-
man's march through the state. Nevertheless, General Order 100 is
a magnificent piece of work, and Francis Lieber certainly ranks
high among the legal scholars of the laws of war. The second possi-
bility that came to me was to give what is known in American liter-
ature as a perfect tribute and say absolutely nothing. But Lincoln
was not talking to a group of lawyers, and lawyers do not tolerate
silence.
The comments of the previous speakers remind me of a story
about the head of German intelligence in World War II, Admiral
Fenares. He received on his desk one day a proposition from an
official in the Nazi Party that the Soviet Union was not a signatory
to the Geneva Conventions. Therefore, this official suggested, So-
viet prisoners of war could be subject to execution, or at the very
least, they need not be given prisoner of war status. I pointed out,
in disagreement with the memorandum, that the Geneva Conven-
tions represent the lowest common denominator for the treatment
of human beings by governments in wartime. This memorandum
came to light after the war and caused great embarassment for the
official who wrote it. The point is that even if the Soviets were not
a party, the Geneva Conventions represent a minumum standard
of conduct for the treatment of people.
Colonel Draper has pointed out that the laws of war are con-
tained in the Hague Conventions of 1907. Very little had been
done to modernize these agreements until 1977, when Protocols I

*Assistant General Counsel, International Communications Agency.

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and II to the Geneva Conventions were signed. The problem is

that the Hague Conventions and the Geneva Conventions have dif-
ferent purposes. While the Hague Conventions set out the rules for
conducting war, the Geneva Conventions are designed to protect
the victims of war. The two do not mix well because the basis for
their enforcement is different. The Hague Conventions and the
laws of war are based on the principle of reciprocity. The humani-
tarian laws of the Geneva Conventions are based on two principles:
the protecting power which has been built into them and the re-
spect for them which has developed.
Protocol II to the Geneva Conventions is designed to deal with
the problem of internal conflicts. Colonel Draper said that in the
last days of the drafting conference, Protocol II went through a
debilitating process. I would say that it was emasculated. Half of
the articles were taken out completely. Many of those dealt with
rules of combat. I would like to suggest that perhaps removing
those articles was not so bad. We need a set of rules for internal
conflicts that commands respect by both sides without regard to
reciprocity. I would even go so far as to say that Canada, which
provided the primary impetus for the removal of many of those
articles, would have probably found the Protocol unacceptable as it
came out of the working committees. Indeed, many of the coun-
tries that submitted magnificent ideas for Protocol II were not
moved by humanitarian principles, but were deliberately loading
the Protocol with provisions for dealing with internal troublemak-
ers that they knew most countries of the world would not accept.
I was disappointed with many of the articles that were removed.
Even so, I think that the Protocol was an advance, not as much of
an advance as I and many others would like to have seen, but still
an advance. In the immediate future, I think internal conflicts can
be controlled through regional human rights conventions, which
have established commissions, courts, and protocols. At the pre-
sent time regional attempts at control may be more effective than
global attempts.